State v. Ross, Nos. 13224

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; PETERS; When the issue of territorial jurisdiction was initially raised in the trial court by the defendant's motion to dismiss, the trial court, Hendel; BERDON
• Citation: 230 Conn. 183,646 A.2d 1318
• Parties: STATE of Connecticut v. Michael B. ROSS. to 13226.
• Docket Number: Nos. 13224
• Decision Date: 26 July 1994

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646 A.2d 1318 230 Conn. 183 STATE of Connecticut
v.
Michael B. ROSS. Nos. 13224 to 13226. Supreme Court of Connecticut. Argued Feb. 15, 1994.
Decided July 26, 1994.

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[230 Conn. 187] Kent Drager, Asst. Public Defender, and Michael A. Fitzpatrick, with whom were G. Douglas Nash and M. Fred DeCaprio, Public Defenders, and Peter Scillieri and Elizabeth Inkster, Asst. Public Defenders, for appellant (defendant).

Harry Weller, Asst. State's Atty., with whom were C. Robert Satti, Sr., State's Atty., Jack W. Fischer, Judith Rossi and Susan C. Marks, Asst. State's Attys., and Mary Thurston, Law Student Intern, for appellee (state).

James W. Bergenn, Gregory T. D'Auria and David N. Rosen filed a brief for Connecticut Citizens for Humanizing Crim. Justice et al. as amici curiae.

Helena M. Cook, Christopher Keith Hall, Alice M. Miller, Jane Rocamora, David Weissbrodt, William M. Bloss, Julius Oosthuizen and Catherine A. DeFlorio filed a brief for Amnesty Intern. et al. as amici curiae.

David M. Cohen and Martha Stone filed a brief for Connecticut Civ. Liberties Union Foundation as amicus curiae.

Kathryn Emmett and Deborah Fins filed a brief for American Friends Service Committee et al. as amici curiae.

Jacob D. Zeldes, Jennifer L. Forrence, Tanina Rostain, Jonathan M. Levine and

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Loftus E. Becker, Jr., filed a brief for Ezra E.H. Griffith et al. as amici curiae.

[230 Conn. 183] Before PETERS, C.J., and CALLAHAN, BERDON, DUPONT and EDWARD Y. O'CONNELL, JJ.

[230 Conn. 187] PETERS, Chief Justice.

These consolidated criminal appeals from the imposition of the death penalty upon the defendant, Michael B. Ross, raise numerous issues concerning the validity of his capital felony convictions and the validity of the procedures that resulted in death sentences for each of these convictions. ¹ After a trial to [230 Conn. 188] determine guilt, a jury convicted the defendant of six counts of capital felony ² in violation of General Statutes § 53a-54b. ³ At a separate sentencing hearing pursuant[230 Conn. 189] to General Statutes § 53a-46a, ⁴ the same jury considered further evidence and found

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an aggravating [230 Conn. 190] factor and no mitigating factor with respect to each count. As a result, the trial court rendered a judgment imposing the death sentence on the defendant on each count. The defendant has appealed to this court in accordance with General Statutes §§ 51-199 and [230 Conn. 191] 53a-46b. ⁵

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We affirm the defendant's conviction of all counts of capital felony. Because of improprieties in the conduct of the sentencing hearing, however, we reverse the judgments imposing the death penalty and remand for new sentencing hearings on all counts.

The jury could reasonably have found the following facts. On June 13, 1984, the defendant accosted seventeen year old Wendy B. as she was walking along Route 12 in Lisbon. After a short conversation, he pulled Wendy B. over a stone wall, forcing her to go with him into a wooded area that led to an open field. There he sexually assaulted her, forced her to turn over on her stomach, and then strangled her.

On Thanksgiving Day, 1983, the defendant accosted nineteen year old Robyn S. on the grounds of Uncas on Thames State Hospital in Norwich. He forcefully pulled Robyn S. into a wooded area and ordered her to remove her clothing. He then sexually assaulted her [230 Conn. 192] and, after ordering her to turn over on her stomach, strangled her. Before leaving, he covered her body with leaves.

On Easter Sunday, 1984, the defendant picked up fourteen year old April B. and fourteen year old Leslie S., who were hitchhiking to Jewett City on Route 138. Once the girls had entered his car, he drove them easterly on Route 165 and, over their protests, past their intended destination. When April B. tried to force the defendant to stop the car by threatening him with a knife, he disarmed her and continued to transport the girls against their will, through eastern Connecticut, to Beach Pond in Rhode Island. At Beach Pond, he parked his car and bound both girls hand and foot. He then untied April B.'s feet and forced her to walk a short distance from his car, where he assaulted her sexually, turned her over on her stomach and strangled her. Returning to the car, the defendant killed Leslie S. without sexually assaulting her. He then placed the bodies of both girls in his car and drove back to Preston, Connecticut, where he deposited their bodies in a culvert.

At his trial, the defendant did not deny having committed the sexual assaults, the kidnappings and the murders described above. His defense was insanity, a defense that the jury rejected by finding him guilty as charged. Additional facts will be discussed as they become relevant to the issues before us.

The defendant's appeal raises a multitude of issues, which we will address in three main parts. First, we will consider the validity of the defendant's conviction of six counts of capital felony. Second, we will consider the facial constitutionality, under the federal and state constitutions, of imposing the death penalty upon a person who has been found to have committed, in an especially heinous, cruel or depraved [230 Conn. 193] manner; § 53a-46a(h)(4); a capital felony under subsection (5) or subsection (7) of § 53a-54b. Third, we will consider the validity, pursuant to § 53a-46a, of the defendant's sentencing hearing. In light of our remand for a new sentencing hearing because of substantial noncompliance with the statutory requirements of § 53a-46a, we need not review the defendant's death sentences pursuant to § 53a-46b.

I VALIDITY OF THE CONVICTIONS

The defendant has raised numerous challenges to the validity of his conviction of six counts of capital felony. On jurisdictional grounds, he maintains that the trial court lacked the authority to try him for the two counts of capital felony involving the two murders committed in Rhode Island. On evidentiary grounds, he maintains that the trial court improperly: (1) denied his motions to suppress his incriminatory statements to the police; and (2) restricted his cross-examination of a police officer. On instructional grounds, he maintains that the trial court improperly charged the jury concerning: (1) the inferences that could be drawn from missing witnesses; (2) the special evidentiary requirements for proof of a capital crime; (3) reasonable doubt; (4) the burden of proving insanity; and (5) the unavailability of a defense of extreme emotional disturbance. In addition, he maintains that the trial court improperly: (1) denied his motion for severance; (2) permitted prejudicial commentary by the prosecuting attorney; and (3) rejected claims of juror prejudice. We agree with the

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state that none of the defendant's claims of error warrant reversal of his convictions.

Before addressing the multiple claims raised by the defendant, we should take notice of two claims that he does not make. He does not challenge the sufficiency of the evidence to support the jury's verdicts that he [230 Conn. 194] was guilty, beyond a reasonable doubt, of each of the counts of capital felony with which he was charged under § 53a-54b(5) and (7). He similarly does not challenge the jury's determination that he failed to establish his defense of insanity by a preponderance of the evidence.

A JURISDICTIONAL ISSUES

The defendant maintains that the trial court lacked territorial jurisdiction to try him for the capital felonies relating to the deaths of April B. and Leslie S. because these two victims were not killed in Connecticut. The state argues that Connecticut's continuing jurisdiction over the defendant's kidnapping of these victims provides authority for Connecticut to prosecute him for the capital felonies arising out of the murders committed in Rhode Island.

When the issue of territorial jurisdiction was initially raised in the trial court by the defendant's motion to dismiss, the trial court, Hendel, J., after a hearing, made the following findings of fact. The victims were kidnapped in Connecticut and killed in Rhode Island. At the time of their abduction, the defendant had the intention to assault the victims sexually and to kill them. The victims had the ability to observe the defendant throughout their abduction and thus would have been able to identify him.

From these facts, the trial court concluded that it lacked jurisdiction over the capital felony counts charging the defendant with double murder; § 53a-54b(8); and with the sexual assault and murder of April B.; § 53a-54b(7); because the alleged murders and sexual assault had been committed entirely in Rhode Island. ⁶ The trial court concluded, however, that it had jurisdiction[230 Conn. 195] over the capital felony counts charging murder in the course of a kidnapping. General Statutes § 53a-54b(5). Without challenging the trial court's underlying findings of fact, the defendant argues that its ruling of law was incorrect. We disagree.

Our starting point is the observation that, as a general matter, the Superior Court has no territorial jurisdiction to adjudicate a charge of murder unless the state proves, beyond a reasonable doubt, that the victim was murdered in Connecticut. General Statutes § 51-1a(b); State v. Beverly, 224 Conn. 372, 375-76, 618 A.2d 1335 (1993); State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); A. Spinella, Connecticut Criminal Procedure (1985) 18-19, § 3A. This point of departure is consistent with the common law principle that limits the state's interest in vindicating its criminal laws to the reach of its territory. State v. Volpe, supra; State v. Grady, 34 Conn. 118, 129-30 (1867); Gilbert v. Steadman, 1 Root 403 (1792). This principle of limited territorial jurisdiction presumably underlay the trial court's dismissal of the capital felony count charging the defendant with having violated § 53a-54b(8).

The issue before us is...